Corporate Laws

LW 060.06.2011
PIRAMAL GLASS LIMITED v. UNION OF INDIA & ORS [BOM] Writ Petition No. 10079 of 2010 J.P. Devadhar & Mridula Bhatkar, JJ. [Decided on 03/03/2011]
Foreign Trade (Development & Regulation) Act, 1992 Export promotion incentives DFRC scheme Import of formers under DFRC Revenue demanding Duty on such import Whether tenable Held, No. Brief facts: By communication dated 03/05/2010 the DGFT has informed the Jt. DGFT, Mumbai that during the period 2004-05, Duty Free Replenishment Certificates (DFRC for short) ought to have been issued to the petitioner, for import of duty free inputs which were set out in the Standard Input Output Norm (SION) notified by the DGFT on the date of exports and not as per the SION notified subsequent to the exports. Based on the above communication, the Jt. DGFT, Mumbai by 11 orders in original all dated 26/11/2010 has demanded duty with penalty from the petitioner in respect of the Formers imported duty free by the holder of the DFRCs issued to the petitioner on the ground that the Formers were not covered under the SION notified by the DGFT on the date of exports effected by the petitioner. Decision: Petition allowed. Reason: The basic dispute in the present case is, whether DFRC under the 2002-2007 policy was liable to be issued in respect of the inputs which are covered under the SION on the date of export or in respect of inputs covered under the SION on the date of issuing DFRC? Perusal of para 4.1 and para 4.2 of the EXIM policy, 2002 2007 clearly shows that DFRCs were to be issued for duty free import of inputs used in the export product. Since the DFRCs were issued after the product is exported, to prevent any abuse, the policy provides that the DGFT must approve the inputs that are used in the export product. That is why para 4.2.3 of the policy provides that DFRC shall be issued only in respect of the products covered under the SION as notified by the DGFT. Para 4.2.3 of the policy cannot be construed to mean that the DGFT has the discretion not to include an input used in the export product in the SION. In other words, the policy provides that all inputs used in the export product are eligible for duty free import to the extent permitted under the DFRC, however, the said inputs must be noticed by the DGFT. The fact that the Formers/packing materials are inputs used in the product exported by the petitioner is confirmed by the Central Excise authorities. Even the DGFT has confirmed, though belatedly, that Formers/packing materials are inputs used in the product exported by the petitioner. There is nothing in the policy to suggest that DFRC has to be issued in respect of the inputs notified under the SION on the date of export. Even the public notice dated 12/4/2004 does not state that the Formers/packing materials shall be treated as inputs used in the export product with effect from 12/4/2004. Therefore, the petitioner was entitled to seek DFRC for duty free import of Formers/packing materials along with other inputs set out in the SION and consequently, issuance of DFRCs for duty free import of Formers/packing materials in respect of exports effected prior to 12/4/2004 cannot be faulted. In the present case, even the authorised officer interpreted the policy to mean that irrespective of the date of export once the Formers/packing materials were notified as inputs used in the export product DFRC licences have to be issued irrespective of the date of export, and accordingly issued the DFRCs in favour of the petitioner. The very fact that even after the Audit Authority raised objection, the Jt. DGFT deemed it fit to seek clarification from the DGFT clearly shows that the issue was debatable and was not free from doubt. Therefore, the DGFT could not have issued clarification on 3/5/2010 so as to prejudicially affect the interests of the exporters/third parties, who had imported Formers/packing materials on the basis of the DFRCs issued by the office of the Jt. DGFT several years ago. In other words, even if it is held that the Licensing authorities were in error in interpreting the provisions of the policy, in the facts of the present case, since the DFRCs have been fully utilized much prior to the realisation of the mistake committed by the licensing authority, the petitioner cannot be saddled with any liability in respect of imports already made. We find merit in the argument of the petitioner that assuming the revenue is right in contending that Formers/packing

materials could not be imported duty free in respect of exports effected prior to 12/4/2004, then firstly, the licensing authorities could not to have issued DFRCs permitting duty free import of inputs including formers/packing materials. Having issued DFRC and having allowed duty free import of Formers under DFRC, it is not open to the revenue to contend that the duty free import is unauthorised. Secondly, if the petitioner was intimated about the alleged mistake in the DFRCs, then the parties to whom the DFRCs were sold would have imported only those inputs which are permissible for duty free import. Once the Formers/packing materials have been imported duty free as per the DFRCs validity issued by the licensing authorities and the said items have even now continue to remain in the DFRCs issued to the petitioner, the question of demanding any duty on the Formers/packing materials imported under the said DFRCs issued by the licensing authorities does not arise at all.

allowed the EOGM to be held as scheduled on 17th January, 2011 but directed that the decisions taken by EOGM would not be given effect to till the CLB decides the petition finally. Decision: CLBs order quashed. Reason: Having heard the parties and having perused the papers, I am of the opinion that the mere fact that IFCI did not reply to TFCIs letter dated 2nd December, 2010 does not mean that any legal presumption can be drawn that the requisition dated 26th November, 2010 was not authorised by the Board and/or the Company Secretary of IFCI did not have the authority to requisition the EOGM. The fact is that the Board of IFCI has vide its resolution dated 29th November, 2001 given specific authority to its Company Secretary to sign all legal documents. Section 2(15) of the Act defines a document to include a requisition. Consequently, if the IFCIs Board minutes dated 29th November, 2001 is read in conjunction with Section 2(15), it is apparent that the Company Secretary of IFCI was authorised by its Board by a prior general authorisation to requisition an EOGM. Also, during the course of hearing of the appeal, it was not controverted before me that the minutes of board meeting dated 29th November, 2001 had been given on 8th December, 2010 to TFCI as an annexure along with initial petition filed by the IFCI under Section 169 of the Act which was later dismissed as premature. I am also in agreement with the submission that IFCIs subsequent board resolution dated 31st March, 2011 passed in favour of its Company Secretary as a measure of abundant precaution did not prove that there was no prior authorisation in favour of IFCIs Company Secretary when requisition dated 26th November, 2010 was issued. As far as the finding of the CLB that the requisition dated 26th November, 2010 was not signed as required under Section 169(3) of the Act is concerned, I am of the view that law prescribes no particular form of the requisition. In view of the aforesaid discussion, I am of the opinion that the reasoning given by the CLB in the impugned order is unsustainable. Accordingly, the impugned order is set aside and the requisition dated 26th November, 2010 as well as the EOGM dated 17th January, 2011 are held to be legal and valid.

LW 061.06.2011
IFCI LTD v. TFCI LTD [DEL] CO.A (SB) 13/2011 & CO. APPLS. 538/2011, 564/2011, 764/2011 Manmohan, J. [Decided on 16/05/2011]
Companies Act, 1956 Sections 169, 398, 402 Applicant companys request to convene a EOGM was rejected by the respondent company on the ground that company secretary is not authorized to sign the request CLB upholding the ground Whether CLB is correct Held, No. Brief facts: The appellant company (hereinafter referred to as IFCI) owns 37.85% of shares of respondent-company (hereinafter referred to as TFCI). On 26th November, 2010 IFCI sent a requisition to TFCI for convening an Extra-Ordinary General Meeting (for short EOGM) with the objective of appointing four new directors and removal and replacement of one director on the Board of TFCI. However, TFCI vide letter dated 2nd December, 2010 questioned the validity of the requisition on the ground that though it was signed by the Company Secretary of IFCI, but specific authorisation/board resolution to file such requisition had not been annexed and it requested IFCI to send the said board resolution within a period of one week. Subsequently, on not getting the said information, TFCI through its board meeting held on 14th December, 2010 decided not to convene EOGM of TFCI. On receiving this information, IFCI on 15th December, 2010 initiated the process under Section 169(6) of the Act for convening an EOGM on 17th January, 2011. IFCI then filed the Company Petition No. 124(ND) of 2010 under Sections 398 and 402 of the Act on the same day before the CLB. The CLB vide its order dated 12.1 2011 deferred the holding of the EOGM and this order was impugned before the High Court, wherein the High Court

LW 062.06.2011
UNION OF INDIA V. ASHOK J. RAMSINGHANI [BOM] Civil Application No. 176 of 2010 in First Appeal (ST) No. 27028 of 2010 J Devadhar & A Sayed, JJ. [Decided on 04/05/2011]
Sections 52, 50, 54 of Foreign Exchange Regulation Act,

1973 read with sections 13(1), 49(5) (c), 35 Foreign Exchange Management Act, 1999 Adjudication under FERA imposing penalty Appellate Tribunal set aside the demand under FERA Second appeal to High Court was delayed by 291 days Whether the second appeal is under FERA or FEMA Held, second appeal was under FEMA Whether delay can be condoned Held, No. Brief facts: This Civil Application is filed by the applicant Assistant Director, Enforcement Directorate, Mumbai seeking condonation of 291 days delay in filing the appeal against the order dated 18/8/2009 passed by the Appellate Tribunal for Foreign Exchange in Appeal No.110/08. The Appellate Tribunal by its order dated 18/8/2009 has set aside the penalty of Rs.7 crores imposed by the Special Director, vide order in original dated 28/3/2008, passed under Section 50 of the Foreign Exchange Regulation Act, 1973 (FERA for short) read with Section 13(1) of the Foreign Exchange Management Act, 1999 (FEMA for short). The condonation of delay is sought on the ground that there was sufficient cause for not filing the appeal in time and since the appeal is filed under Section 54 of the FERA read with Section 49(5) (c) of FEMA, the High Court is empowered to condone the delay for any period of time subject to showing sufficient cause. Decision: Application is dismissed. Reason: In the present case, for the offence allegedly committed under FERA, proceedings were initiated against the respondent after the commencement of FEMA as per Section 49 of FEMA and penalty was imposed under Section 50 of FERA read with Section 13(1) of FEMA. The question is, whether the first appeal and thereafter the second appeal

filed against such penalty order could be said to have been filed before the authorities constituted under FERA or FEMA? The legislature while repealing FERA and replacing it with FEMA has expressly dissolved the first appellate authority, namely the Appellate Board. Thus, on commencement of FEMA, the first appellate forum prescribed under FERA namely, the Appellate Board is expressly abolished. As a result, after commencement of FEMA, appeals against adjudication orders passed under FERA had to be filed before the appellate authorities under FEMA, namely Special Director (Appeals)/ Appellate Tribunal, as the case may be. The legislature further provides under Section 49(5) (b) of FEMA that appeals pending before the Appellate Board on the date of commencement of FEMA shall be transferred to the Appellate Tribunal constituted under FEMA. Thus, on commencement of FEMA, appeal against the adjudication order passed under FERA would be maintainable before the appellate authorities constituted under FEMA within the period of limitation prescribed under FEMA. In other words, appeals against adjudication orders passed under FERA or FEMA after the commencement of FEMA, have to be filed before the appellate authorities constituted under FEMA within the period of limitation prescribed for filing appeals before the appellate authorities constituted under FEMA. For all the aforesaid reasons, we hold that the appeal filed by the applicant against the decision/order of the Appellate Tribunal dated 18/8/2009 being an appeal filed under Section 35 of FEMA would be subject to the limitation prescribed thereunder. Under Section 35 of FEMA, this Court can condone the delay, not beyond 60 days. In the present case, the appeal is beyond time by 291 days. Therefore, this Court cannot condone the delay of 291 days in filing the appeal.

General Laws
LW 063.06.2011
UNION OF INDIA & ORS. v. MASTER CONSTRUCTION CO [SC] Civil Appeal No. 3541 of 2011 (Arising out of SLP (Civil) No. 8162 of 2007) Aftab Alam & R.M. Lodha, JJ. [Decided on 25/04/ 2011]
Arbitration and Conciliation Act, 1996 Sections 11, 11(6) Contractor raised disputes after issuing no claims certificate High Court appointed the arbitrator Whether the appointment is valid Held, No. Brief facts: The respondent (for short, the contractor) was awarded a contract by the first appellant for the work, provisions of OTM accommodation and certain essential technical buildings to be erected and installed at Bhatinda. The first phase of the work was to be completed by July 20, 1996 and the second phase by January 20, 1997. The agreement between the parties made IAFW2249 an integral part of the contract. Condition 70 thereof provided mode for resolution of disputes and differences between the parties through arbitration. The work is said to have been completed by the contractor, albeit belatedly, on August 31, 1998. The completion certificate was issued on September 9, 1999. The contractor furnished noclaim certificates on April 3, 2000, April 28, 2000 and May 4, 2000 and the final bill was signed on May 4, 2000. The payment of final bill was released to the contractor on June 19, 2000.

Thereafter, the bank guarantees amounting to Rs. 21, 00,000/was also released on July 12, 2000. Immediately after release of the bank guarantee, on that very day, i.e. July 12, 2000, the contractor wrote to the appellants withdrawing no-claim certificates; it also lodged certain claims. The Chief Engineer declined to entertain the claims of the contractor on the ground that the final bill has been accepted by the contractor after furnishing the no-claim certificates and no claim under the contract remained. As disputes the contractor approached the High court to appoint am arbitrator and accordingly the High court appointed an arbitrator and referred the disputes to arbitration. The appellant challenged this appointment before the Supreme Court of India. Decision: Appeal allowed. Reason: The controversy presented before us does not concern the existence of arbitration agreement but it relates to whether after furnishing no-claim certificates and the receipt of payment of final bill, as submitted by the contractor, any arbitrable dispute between the parties survived or the contract stood discharged. In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or noclaim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be necessity to refer the dispute for arbitration at all. It cannot be overlooked that the cost of arbitration is quite huge - most of the time, it runs in six and seven figures. It may not be proper to burden a party, who contends that the dispute is not arbitrable on account of discharge of contract, with huge cost of arbitration merely because plea of fraud, coercion, duress or undue influence has been taken by the claimant. A bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up such plea must prima facie establish the same by placing material before the Chief Justice/his designate. If the Chief Justice/his designate finds some merit in the allegation of fraud, coercion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an after-thought, make-believe or lacking in credibility, the matter must be set at rest then and there. In light of the above legal position, we now turn to the facts of the present case. At the time of receiving payment on account of final bill, the contractor executed the certificate and also appended the

following in the certificate: It is certified that I have prepared this final bill for claiming entire payment due to me from this contract agreement. The final bill includes all claims raised by me from time to time irrespective of the fact whether they are admitted/accepted by the department or not. I now categorically certify that I have no more claim in respect of this contract beyond those already included in this final bill by me and the amount so claimed by me shall be in full and final satisfaction of all my claims under this contract agreement. I shall however, receive my right to raise claim to the extent disallowed to me from this final bill. The above certificates leave no manner of doubt that upon receipt of the payment, there has been full and final settlement of the contractors claim under the contract. That the payment of final bill was made to the contractor on June 19, 2000 is not in dispute. After receipt of the payment on June 19, 2000, no grievance was raised or lodged by the contractor immediately. The concerned authority, thereafter, released the bank guarantee in the sum of Rs. 21,00,000/- on July 12, 2000. It was then that on that day itself, the contractor lodged further claims. The present case, in our opinion, appears to be a case falling in the category of exception noted in the case of Boghara Polyfab Private Limited (Para 25, page 284). As to financial duress or coercion, nothing of this kind is established prima facie. Mere allegation that no-claim certificates have been obtained under financial duress and coercion, without there being anything more to suggest that, does not lead to an arbitrable dispute. The conduct of the contractor clearly shows that no claim certificates were given by it voluntarily; the contractor accepted the amount voluntarily and the contract was discharged voluntarily.

LW 064.06.2011
BAYER CROP SCIENCE LTD. v. HPM INDUSTRIES LTD & ORS [DEL] CS (OS) No. 1106/2010 V.K. Jain, J.[Decided on 11/05/2011]
Suit for recovery against the company and directors Admission of debt in criminal proceedings by the directors Whether such admission is acknowledgement of debt Held, Yes Whether directors are liable for the debt of the company Held, No. Brief facts: Defendant No.1 is the company and the defendants 2 & 3 are the directors. The plaintiff company used to supply the goods to the defendant no. 1 company from time to time and the time for making payment varied up to 90 days depending upon each purchase order. A sum of Rs. 10462564/ - was due to the plaintiff company from defendant no. 1 company as on 1st January, 2004. Between 14th May, 2004 to

30th August, 2004, the plaintiff company supplied goods worth Rs. 63,30,841.76/- to defendant no. 1 company, as a result of which liability of defendant no. 1 company to the plaintiff company rose to Rs. 1,67,93,405/-. Out of the aforesaid amount of Rs. 1,67,93,405/-, the defendant no. 1 made payment of Rs. 1,12,77,844/-, through various cheques, leaving a balance of Rs. 55,15,561.76/-. On 14th May, 2005, the defendant company made payment of Rs. 2 lakhs thereby reducing the outstanding amount to Rs. 53,15,561/-. A criminal complaint was then filed by the plaintiff company against the defendants. During pendency of the complaint, the plaintiff company received payment of Rs. 2 lakhs from the defendant company vide two separate cheques of Rs. 1 lakh each one of which was credited on 20th March, 2007 and the other on 10th April, 2007. The liability of defendant company to the plaintiff company thereupon came down to Rs. 51,15,561/-. It is also alleged that in a revision application filed by defendant nos. 2 and 3 against the order passed by the learned Metropolitan Magistrate on 24th August, 2006 in a criminal complaint filed by the plaintiff company, the liability of Rs. 53,15,561.76 was admitted. Since the defendants have failed to make payment of the balance amount of Rs. 51,15,561/-, the plaintiff has claimed the aforesaid amount along with interest @ 18% per annum amounting to Rs. 50,38,422.37/-. Decision: Suit decreed against the company. Reason: The admission of liability made in the criminal revision application constitutes acknowledgment of liability within the meaning of Section 18 of the Limitation Act and a fresh period of limitation starts from the date acknowledgment was made. Though the date of filing of the criminal revision application has not been given by the plaintiff, a perusal of the copy filed by the plaintiff would show that it was drafted in September, 2007. Obviously, it would have been filed in or after September, 2007. Since part payments made on 16th August, 2004 and 14th May, 2005 had earlier extended the period of limitation, the acknowledgement in September, 2007 was also within the prescribed period of limitation. Having been filed on 28th May, 2007, if the period of limitation is computed even from 1st September, 2007, the suit is well within the prescribed period of limitation. I, therefore, hold that the plaintiff is entitled to recover the principal amount of Rs. 51,15,561.76/- from the defendant. The plaintiff has claimed interest @ 18% per annum. There is no written agreement between the parties for payment of interest. No usage of trade or customs for payment of interest has been pleaded or proved. However, since this is a suit for price of goods sold and delivered, interest can be awarded to the plaintiff under Section 61(2) of the Sale of Goods Act. Considering the nature of the transactions between the parties, I am of the view that interest under Section 61(2) of the Sale of Goods Act should be awarded at the rate of 12% per annum.

The amount of interest computed @ 12% comes to Rs. 33,58,948.25/-. The total amount payable by defendant no. 1 to the plaintiff company thus comes to Rs. 84,74,510.01/-. The decree for recovery of Rs.84,74,510.01 with proportionate costs and pendente lite and future interest @ 12% per annum is passed in favour of the plaintiff and against defendant no. 1 only. Since the goods were supplied to a company and defendant nos. 2 and 3 were not the guarantors for the payment to be made by the defendant no. 1, the plaintiff is not entitled, in law, to recover amount from defendant nos. 2 and 3. The suit against defendants no. 2 & 3 is therefore dismissed without any order as to costs. The decree sheet be drawn accordingly.

LW 065.06.2011
ARTI JETHANI v. DAEHSAN TRADING (INDIA) PVT LTD & ORS [DEL] CS (OS) No. 1296/2010 V.K. Jain, J.[Decided on 16/05/2011]
Arbitration and Conciliation Act Section 8 Agreement contained arbitration clause Plaintiff filed the civil suit Defendant moved an application for referring the disputes to arbitration after filing the written statement Whether maintainable Held, No. Brief facts: This is a petition, of the defendant, under Section 8 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) for referring the disputes raised by the plaintiff for arbitration, in terms of the arbitration agreement between the parties. The application under consideration came to be filed on 22nd February, 2011. On suit summons being served on them, the defendants appeared through counsel on 04th January, 2011 and it was directed that the written statement be filed within the prescribed period. The matter was adjourned to 02nd May, 2011. The written statement was filed on 25th January, 2011. Replication to the written statement was filed on 14th February, 2011. In replication, the plaintiff relying upon the decision of Supreme Court in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and Anr. AIR 2003 SC 2252, stated that the defendants having already filed Written Statement and no application under Section 8 of the Act having been filed, the matter was not required to be referred to the arbitral tribunal. Decision: Application dismissed Reason: In the case before this Court, the application under consideration having not been filed on or before filing of written statement, but having been filed about four weeks after the written statement had been filed and after 8 days of filing of replication, one of the pre-requisite conditions for referring the parties to arbitration under Section 8 of Arbitration and Conciliation Act does not stand fulfilled in this case.

The contention of the learned counsel for the applicant is that since the defendant had already pleaded in the written statement that there is an arbitration agreement between the parties and, therefore, this Court has no jurisdiction to adjudicate the instant suit, it is evident that the applicants did not submit to the jurisdiction of the Civil Court and, therefore, the application is maintainable even after filing of the written statement. In my view, if the Court accepts the contention that an application under Section 8 of the Act can be filed even after the first statement on substance of the dispute between the parties has already been filed, this would not only be contrary to the express provisions of law but, would also defeat the very purpose behind stipulating that such an application needs to be filed not later than submitting the first statement on the substance of the dispute. If such an application is entertained after filing of the first statement, it would be possible for a party to the suit to first allow the trial to proceed by not filing the application by the stage stipulated in the Act and then come to the Court at a much later stage when the trial is substantially complete and seek reference of the dispute to arbitration. It is true that in the case before this Court the trial has not commenced as yet, but if the interpretation sought to be given by the learned Counsel for the applicants/defendants is accepted, it would be open to a party to the suit to file such an application even after the trial has commenced. The question as to whether a defendant who pleads arbitration agreement in the Written Statement, but does not file an application under Section 8 of the Act, on or before filing of the Written Statement has come up before other High Courts in some cases. In K. Jayakumaran Nai v. Vertex Securities Ltd. AIR 2005 Ker. 294, the defendant filed Written Statement raising a contention that there was an arbitration agreement between the parties. After framing of issues he filed an application seeking reference of the dispute for arbitration. The High Court noted that Section 8 of the Act clearly provides that the application had to be made not later than submitting the first statement whereas the application before it had been filed after the issues were framed. The Court expressly rejected the contention that since the matter had been raised in the Written Statement that was enough. While doing so the Court noted that the Written Statement contained no prayer for referring the matter for arbitration. No one can dispute that a Civil Court has no jurisdiction to entertain the suit after application under Section 8 of the Act is filed but this would be subject to the application otherwise being in conformity with the requirements of the said Section. The jurisdiction of the Civil Court is not ousted on account of an arbitration agreement between the parties. It is ousted because of an application filed under Section 8 of the Act provided it otherwise confirms to the requirements laid down in the Section.

LW 066.06.2011
VIDEOCON INDUSTRIES LIMITED v. UNION OF INDIA & ANR [SC] Civil Appeal No. 4269 of 2011 (Arising out of SLP(C) No.16371 of 2008) G.S. Singhvi & R.V. Raveendran, JJ. [Decided on 11/05/ 2011]
Sections 5& 9 of (Indian) Arbitration and Conciliation Act, 1996 read with sections 53, 67, 68, 36 of the English Arbitration Act, 1996 Disputes between parties Arbitration was the dispute resolution Seat of arbitration was Kuala Lumpur Production Sharing Contract Arbitration proceedings initiated in Kuala Lumpur shifted to London Whether there is a change of seat of arbitration Held, No. Whether Delhi High Court has jurisdiction to grant interim relief under section 9 of the Indian Act- Held, No. Brief facts: Respondent No.1 - Government of India owns petroleum resources within the area of Indias territorial waters and exclusive economic zones. Respondent No.2 is an arm of the Ministry of Petroleum and Natural Gas. On 28.10.1994, a PSC was executed between respondent No.1 on the one hand and a consortium of four companies consisting of Oil and Natural Gas Corporation Limited, Videocon Petroleum Limited, Command Petroleum (India) Private Limited and Ravva Oil (Singapore) Private Limited (hereinafter referred to as the Contractor) in terms of which the latter was granted an exploration licence and mining lease to explore and produce the hydro carbon resources owned by respondent No.1. Subsequently, Cairn Energy U.K. was substituted in place of Command Petroleum (India) Private Limited and the name of the Videocon Petroleum Limited was changed to Petrocon India Limited, which merged with the appellant - Videocon Industries Limited. In 2000, disputes arose between the respondents and the contractor with respect to correctness of certain cost recoveries and profit. Since the parties could not resolve their disputes amicably, the same were referred to the arbitral tribunal under clause 34.3 of the PSC. Three cases were filed before the arbitrator. Partial award passed in Case No.3 of 2003 on 31.3.2005 Respondent No.1 challenged partial award dated 31.3.2005 by filing a petition in the High Court of Malaysia at Kuala Lumpur. On being noticed, the appellant questioned the maintainability of the case before the High Court of Malaysia by contending that in view of clause 34.12 of the PSC only the English Courts have the jurisdiction to entertain any challenge to the award. After filing the petition before the High Court of Malaysia, the respondents made a request to the tribunal to conduct the remaining arbitral proceedings at Kuala Lumpur, but their request was rejected vide order dated

20.4.2006 and it was declared that the remaining arbitral proceedings will be held in London. At that stage, the respondents filed OMP No.255 of 2006 under Section 9 of the Act in Delhi High Court for stay of the arbitral proceedings. They filed another OMP No.329 of 2006 questioning award dated 31.3.2005 on the issue of exchange rate. The appellant objected to the maintainability of OMP No.255 of 2006 and pleaded that the Courts in India do not have the jurisdiction to entertain challenge to the arbitral award. The learned Single Judge of the Delhi High Court overruled the objection of the appellant and held that the said High Court has the jurisdiction to entertain the petition filed under Section 9 of the Act. The appellant challenged this decision before the Supreme Court. Decision: Appeal allowed Reason: We have considered the respective submissions and perused the record. We shall first consider the question whether Kuala Lumpur was the designated seat or juridical seat of arbitration and the same had been shifted to London. In terms of clause 34.12 of the PSC entered into by 5 parties, the seat of arbitration was Kuala Lumpur, Malaysia. However, due to outbreak of epidemic SARS, the arbitral tribunal decided to hold its sittings first at Amsterdam and then at London and the parties did not object to this. In the proceedings held on 14th and 15th October, 2003 at London, the arbitral tribunal recorded the consent of the parties for shifting the juridical seat of arbitration to London. Whether this amounted to shifting of the physical or juridical seat of arbitration from Kuala Lumpur to London? The decision of this would depend on a holistic consideration of the relevant clauses of the PSC. Though, it may appear repetitive, we deem it necessary to mention that

as per the terms of agreement, the seat of arbitration was Kuala Lumpur. If the parties wanted to amend clause 34.12, they could have done so only by written instrument which was required to be signed by all of them. Admittedly, neither there was any agreement between the parties to the PSC to shift the juridical seat of arbitration from Kuala Lumpur to London nor any written instrument was signed by them for amending clause 34.12. Therefore, the mere fact that the parties to the particular arbitration had agreed for shifting of the seat of arbitration to London cannot be interpreted as anything except physical change of the venue of arbitration from Kuala Lumpur to London. Under the English law the seat of arbitration means juridical seat of arbitration, which can be designated by the parties to the arbitration agreement or by any arbitral or other institution or person empowered by the parties to do so or by the arbitral tribunal, if so authorised by the parties. In contrast, there is no provision in the Act under which the arbitral tribunal could change the juridical seat of arbitration which, as per the agreement of the parties, was Kuala Lumpur. Therefore, mere change in the physical venue of the hearing from Kuala Lumpur to Amsterdam and London did not amount to change in the juridical seat of arbitration. In the present case, the parties had agreed that notwithstanding Article 33.1, the arbitration agreement contained in Article 34 shall be governed by laws of England. This necessarily implies that the parties had agreed to exclude the provisions of Part I of the Act. As a corollary to the above conclusion, we hold that the Delhi High Court did not have the jurisdiction to entertain the petition filed by the respondents under Section 9 of the Act and the mere fact that the appellant had earlier filed similar petitions was not sufficient to clothe that High Court with the jurisdiction to entertain the petition filed by the respondents.

Tax Laws
LW 067.06.2011
STATE OF TAMIL NADU & ANR v. INDIA CEMENTS LTD. & ANR [SC] Civil Appeal No. 4233 of 2007 D.K. Jain & H.L. Dattu, JJ. [Decided on 21/04/2011]
Tamil Nadu General Sales Tax Act, 1959 Sections 17(A), 28(A) Tax deferral scheme Issue of notifications by State Meeting the conditionalities to avail benefit How to interpret a tax benefit notification SC clarifies. Brief facts: With a view to protect the revenue and also to increase the production level of industries which were interested in availing concessions of deferral of sales tax, the State Government vide G.O.Ms.No.119, dated 13th April, 1994, imposed certain conditions and issued directions that were required to be complied with by the expansion/diversification units for availing sales tax benefits. The first respondent, engaged in the manufacture and marketing of cement proposed to set up an expanded unit at Dalavoi village, Sendurai taluk to avail the benefit of sales tax deferral scheme and SIPCOT issued the requisite eligibility certificate to the first respondent. The first respondent continued to remit the sales tax until they reached the level of BSV, viz. the highest of the actual annual sales in the last three years prior to the expansion, stating that they had also reached, in the financial year, BPV, viz. the highest production in the last three years prior to the expansion and submitted its

return claiming the deferral of tax on the sale in excess of BSV. The Assistant Commissioner of Commercial Taxes, issued a notice informing the first respondent that once the BSV is reached, then the eligibility for availment of deferral under the eligibility certificate dated 13th February, 1998 would be available only for the unit at Dalavoi and the deferral could not be stretched to include the production of other units and accordingly, directed the respondent to pay a sum of Rs.5873.51 lakhs which had been availed, in excess, as deferral of sales tax. Aggrieved by the said demand notice, the first respondent approached the Tribunal seeking quashing of the said notice which was dismissed by the Tribunal. Being aggrieved, the first respondent preferred Writ Petitions before the High Court which has allowed the writ petitions. Hence the instant appeal by the State of Tamil Nadu. Decision: Appeal dismissed. Reason: The short question which falls for consideration is whether the first respondent would be eligible for sales tax deferral in any financial year for the sales made in that year in excess of the base sales volume (BSV) as soon as they exceed the BSV or only when their production also exceeds the base production volume (BPV) in that year? The source of the sales tax deferral scheme is traceable to Section 17A of the TNGST Act which enables the Government to notify deferred payment of tax for new industries, etc. subject to such restrictions and conditions as may be deemed fit. Therefore, the scheme in question has a statutory flavour. From a comparative reading of G.O.P.No.92 dated 22nd February, 1991 and G.O.Ms.No.376 dated 27th October, 1992 on the one hand and G.O.Ms.No.119 dated 13th April, 1994, the eligibility certificate issued thereunder as also the consequential agreement entered between the parties on the other hand, it is evident that G.O.P.No.92 and G.O.Ms.No.376 is the source of power to grant exemption and G.O.Ms.No.119 lays down the methodology and the machinery to implement the scheme. These are complementary to each other. Therefore, the terms and conditions stipulated in the schemes; the eligibility certificate as also the consequential agreement, between the first respondent and the revenue, having the statutory force, undoubtedly violation of any one of the terms and conditions thereof would disentitle the beneficiary of the benefit of the

sales tax deferral scheme. With this background, we may now advert to the core issue viz. the interpretation of clauses 3(i) and 3(ii) of G.O.Ms.No.119 dated 13th April, 1994. A conjoint reading of clauses 3(i) and (ii) of G.O.Ms.No.119 dated 13th April, 1994, and paragraph 5.3 of eligibility certificate dated 13th February, 1998 would show that the object of the conditions with reference to reaching of BPV is to ensure that the concerned unit achieves the highest production and sale of the existing unit in the last three years prior to the commencement of the commercial production in the expansion unit, resulting in higher revenue on higher sales. The benchmark for availing the benefit of the sales tax deferral scheme having been fixed, both with reference to the production as also to the sales, in our opinion, it is immaterial whether the unit concerned reaches BPV or the BSV earlier. In our view, the word when employed in clause 3(ii) of G.O.Ms.No.119, whether read as if or after only signifies that in order to avail of the benefit of sales tax deferral for sales made in the year in excess of the BSV, the industry must achieve in that year the BPV, which is the highest production of the last three years prior to the expansion, for every assessment year of the total number of years, viz., 12 years, besides reaching BSV in that particular year. It is obvious that by insisting that the BSV should also be reached, the revenue of the State gets protected in every assessment year during the entire period of deferral and, in fact, the industry gets the benefit of deferral only on sales which are in excess of the BSV. It is pertinent to note that if for any reason the beneficiary ultimately fails to achieve the BPV during the financial year, the benefit of deferral of sales tax availed of by it on achieving BSV becomes refundable forthwith along with interest thereon. In our opinion, in light of the intention behind the schemes, clause 3(ii) of the G.O.Ms.No.119 cannot be construed to mean that the benefit would flow only from the date of reaching the BPV and not from the date of reaching the BSV, particularly when the main object of the schemes is to increase the productivity without compromising with the revenue of the State. Any other interpretation of the said GOM would frustrate the object of the scheme. It is now well established principle of law that if a plain meaning given to the provision for the purpose of considering as to whether the applicant had fulfilled the eligibility criteria as laid down in the notification or not is found to be clear, purpose and object the notification seeks to achieve must be given effect to.

Consumer Protection Laws

LW 068.06.2011
APOLLO HOSPITALS v. M. SATHYANARAYANA & ORS. [NC] Revision Petition No. 2069 of 2010 S.K. Naik, Presiding Member. [Decided on 28/04/2011]
Consumer Protection Act, 1986 Medical negligence Death of patient after treatment Hospital failed to produce the relevant medical records which was supposed to be maintained under the law Adverse inference was taken against the hospital by then State Commission Whether correct Held, Yes.

Brief facts: The complaint by the respondents, who were the parents of the deceased M. Ramakrishna, are that while operating a paddy harvesting machine their son suffered crush injury to his left arm on 19.12.2003 at 9.30 a.m. He was rushed to Apollo Hospital, Hyderguda and was admitted the same day. Dr. Sudhakar Prasad of the said hospital conducted an operation on the injured M. Ramakrishna on the next day i.e. 20.12.2003. The parents thereafter were told that everything was all right and even the mother who had offered some juice to the injured son found that he was OK. However, two days thereafter on the 23.12.2003 the parents were suddenly informed that condition of their son has become serious and that he needed to be shifted to their main hospital at Jubilee Hills for better management. The injured M. Ramakrishna thereafter remained under the treatment of the Apollo Hospital, Jubilee Hills from 23.12.2003 until his death on the 27.12.2003 due to cardiac arrest secondary to sepsis leading septicemia, respiratory failure, renal failure etc. Shocked at the rapid development and the death of their son within a few days of his sustaining a crush injury, which could not be properly handled by the hospitals, the parents wanted to get the medical records examined. They requested the Apollo Hospital, Hyderguda to provide the treatment records from the time of the admission of their son on 19.12.2003 until he was transferred to their Jubilee Hills Hospital on 23.12.2003. He even sent a DD of Rs.500/- to facilitate the supply of the said documents but the hospital failed to provide any such record. Alleging that their son was not properly treated by the doctors of Apollo Hospital, Hyderguda, as a result of which serious complications developed that could not be properly managed even by their main hospital at Jubilee Hills, the complainants approached the District Forum with a complaint seeking compensation in the sum of Rs.3,54,000/- on various counts as already stated. The District Forum, relying upon Exh. A-5, which is the death summary prepared by the Jubilee Hills Hospital narrating the details with regard to the treatment given to the deceased, did not find the missing treatment record of Hyderguda Hospital of great relevance and dismissed the complaint. Aggrieved thereupon, the complainants filed an appeal before the State Commission, who, as already stated, did not agree with the findings of the District Forum and set aside their order resulting in the impugned order. The Hospital filed a revision petition before the national Commission. Decision: Petition dismissed. Reason: I have heard the learned counsel for the parties and perused the records of the case carefully. On the face of the petitioners own admission that they have misplaced the original records, the onus to prove that there was absolutely no negligence squarely shifted to the petitioners, which they have failed to do. Regulation 1.3 of the Indian Medical Council

(Professional Conduct, Etiquette and Ethics) Regulations, 2002, states as under:1.3 Maintenance of medical records: 1.3.1 Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3. 1.3.2 If any request is made for medical records either by the patients/authorized attendant or legal authorities involved, the same may be duly acknowledged and document shall be issued within the period of 72 hours. 1.3.3...... 1.3.4 Efforts shall be made to computerize medical records for quick retrieval. While this regulation mandates maintenance of the medical records at least for a period of three years, it is very difficult to believe that a highly professional, sophisticated and computerized system of admission and treatment adopted by the Apollo Hospitals has misplaced the treatment records of the patient, especially in the process of transfer of patient to their main hospital. Surely, the computerized records could have been retrieved and produced before the State Commission. In this regard, the learned counsel for the respondent/ complainant has rightly relied upon the orders passed by this Commission in the cases of Dr. Balagopal v. K.V. Radhakrishna Menon & Ors. [2007 STPL (CL) 882 NC] and H.S. Sharma v. Indraprastha Apollo Hospital & Anr. [II (2007) CPJ 21 (NC)]. Having regard to the earlier decisions, this Commission does not find anything wrong or illegal in the State Commission drawing an adverse inference and giving benefit to the complainant. The State Commission has committed no illegality, material irregularity and jurisdictional error.

LW 069.06.2011
COURSE COORDINATOR & CENTRE INCHARGE, INDIAN INSTITUTE OF HOTEL MANAGEMENT & ANR v. RESHMI DUTTA [NC] Revision Petition No. 2352 of 2010 S.K. Naik, Presiding Member [Decided on 26/04/2011]
Consumer Protection Act, 1986 Education Institute invited applications for a course which has already commenced Student sought the refund of the course fee because she could not cover up the completed portions of the course Institute refused to pay relying on its no refund rules

State Commission allowed the complaint Whether tenable Held, yes. Brief facts: In response to an advertisement published by the Indian Institute of Hotel Management/opposite parties in Anand Bazar Patrika on 23.11.2008, the respondent/ complainant by depositing Rs.45,460/- took admission in the Institute on 05.12.2008. After her admission, the respondent/ complainant attended classes for three days and came to know that the course had already commenced sometime in May, 2008 and that the examinations for 2 nd semester would commence in the month of March, 2009. She approached the Course Coordinator/opposite party no.1 seeking to know as to why the advertisement was published at a late stage on 23.11.2008 and she had been admitted for the Hotel Management Course when it had already started from May, 2008. On this, the opposite parties advised her to attend classes assuring her that they would manage her attendance but it was not possible for her to cope up with the studies at that stage when even the practical examinations had already been completed. The respondent/complainant, therefore, requested the opposite parties to consider her candidature for the next session. In the meantime, she got a job in Kolkata and she joined there on 02.05.2009. She also received a communication from the course coordinator/opposite party no.1 that her classes would commence from 27.05.2009 but when the opposite parties did not adhere to their schedule, the respondent/complainant requested for refund of the amount deposited by her but of no avail. In this background, the respondent filed a complaint before the District Forum, who vide its order dated 31.12.2009 finding no merit in the complaint dismissed the same. The respondent/ complainant agitated the matter before the State Commission in appeal and the State Commission, drawing adverse inference on the part of opposite parties, set aside the order of the District Forum and allowed the complaint of the respondent/ complainant in the manner indicated above. The institute preferred this revision petition against the reversal order of the State Commission. Decision: Petition dismissed. Reason: Having carefully gone through the order passed by the District Forum dismissing the complaint and also having gone through the impugned order upsetting the order passed by the District Forum and on perusal of the records of the case and further having considered the points raised by the learned counsel for the petitioner/Institute, it can only be observed that the finding of the State Commission that the petitioner/Institute has been deficient stands fully established. The contention that the advertisement dated 23rd of November, 2008 in the Anand Bazar Patrika was not intended to invite any application for admission stands falsified from the advertisement itself, which is at page 23 of the paper-book, in

which it has been stated as under:Application Procedure Collect the Application Form & Prospectus Rs.300/- in cash or send DD/MO Rs.400/- If the intention was not to invite students for admission, there was no need for the Institute to have indicated the procedure. On the contrary, they ought to have stated that the next course will commence from May, 2009, for which admission will commence from a specific date. Further, this plea falls to the ground for the simple reason that the Institute itself had accepted the fee and admitted the student mid way during the course commencing for the year 2008 and, therefore, they cannot be permitted to say that the respondent/complainant was given any special treatment not provided in their rules. Finally, reliance on the rule of the Institute with regard to a clause that once the fee is paid, the same is not liable to be refunded, it can only be said that this type of one-sided conditions have been overruled by a number of fora, including the University Grants Commissions and the Ministry of Human Resources Development. In a public notice issued by the University Grants Commission in fact it has been stated that institutions should maintain a waiting list of the students/ candidates to fill up the vacancies in the event of a student withdrawing from the course before the starting of the course. The said guidelines also stipulate that the entire fee collected from the student after a deduction of the processing fee of not more than Rs.1000/- shall be refunded and returned by the Institute to the students/candidates. In the case in hand, the State Commission has precisely done that. The State Commission has not committed any illegality, material irregularity or exceeded its jurisdiction in directing the petitioner/Institute to refund the fee after deducting a sum of Rs.1000/-, which is just, proper and reasonable.

LW 070.06.2011
M/S. SIRSAT LODGE v. SHRI MASHNU GAWADE & ANR [BOM] Writ Petition No. 246 of 2000 A P Lavande, J.[Decided on 05/05/2011]
Industrial Dispute Act Section 10 Reinstatement with 80% backwages Reinstatement upheld but quantum of backwages reduced from 60% to 40%. Brief facts: It is the case of the workman that he was employed by the employer since 1967 and his last drawn wages were Rs.450/- per month. The employer owns a building known as Ramchandra Building at Mapusa wherein its establishment/lodge is situated. He was employed as a cleaner by the employer and was being sent for work at Ramchandra Building. He worked for the employer from

1967 honestly and diligently and on 1st June, 1989 when he reported for work, he was orally informed that his services were no more required. He was neither given letter of termination nor one months notice nor was he paid wages in lieu of notice. The workman raised the industrial dispute and upon failure of conciliation proceedings, the Government of Goa by order dated 3rd July, 1990 referred the following dispute for adjudication to respondent no.2. Respondent no.2 held that the workman had proved that he was employed as cleaner by the employer on payment of Rs.450/- per month. The Reference Court also held that joinder of two separate employers in reference was not fatal to the reference. It was further held that the workman had proved that his services were illegally terminated. Consequently, the Tribunal passed an order answering the reference in favour of the workman and ordered reinstatement in service with 60 % back wages and other consequential benefits. Employer challenged the decision before the High Court. Decision: Partly allowed. Reason: Perusal of the impugned award discloses that respondent no.2 has held that the workman had proved that he was employed as a cleaner by the employer and his last drawn wages were Rs.450/- per month. To arrive at this conclusion, the Tribunal has not only relied upon the evidence led on behalf of the workman but also the evidence of Shri Suhas Sirsat, the witness examined by the employer, who stated that the workman, who had worked with the employer till March, 1978 and from April, 1978, he left the services on his own. It was the case of this witness that the workman did not give letter of resignation to employer. The Tribunal held that once the employer admitted that the workman was in their employment, the burden was on the employer to prove that the workman left the services on his own accord from April, 1978. The Tribunal further held that the employer could have led evidence of any of the workers working with him to prove this fact. In this factual background, the version of the workman that he continued to be in service till 31st May, 1989 and his services were illegally terminated with effect from 1st June, 1989 deserves to be accepted. I do not find any perversity in this finding. The Tribunal further held that merely because the words The owner of Ramchandra Building appear in the schedule of reference, it did not mean that two separate employers were joined in the reference and consequently, non-joinder of the owner of Ramchandra Building was fatal to the reference. The Tribunal also relied upon the fact that it was the contention of the workman that Ramchandra Building was owned by M/s. Sirsat Lodge as is evident from the statement of claim filed by the workman. The Tribunal

further held that at no point of time, the employer had raised the objection in the written statement or during the pendency of the proceedings that the owner of Ramchandra Building was not joined as a party to the proceedings. The Tribunal held that there was no joinder of two separate employers in the reference and consequently, the question of non-joinder of the owner of Ramchandra Building, did not arise. I do not find any legal infirmity in the findings recorded by the Tribunal. The next question which arises for consideration is whether the Tribunal was justified in reinstating the services of the workman with consequential benefits and granting 60 % back wages. In so far as grant of relief of reinstatement of the services of the workman with consequential benefit and continuity in service is concerned, I do not find any infirmity or illegality in the said order in as much as once it was held that the employer had illegally terminated the services of the workman, he was entitled to be reinstated and continued in service with other consequential benefits in the absence of the employer bringing on record the circumstances which would justify refusal of the said reliefs to the workman. In the present case, the workman was employed as cleaner from 1967 to 1989. In his evidence except for his statement that I am not presently employed no other evidence has been led on behalf of the workman to establish that from the date of termination till the date of award, he was not gainfully employed. Considering the period for which the workman was in employment and also the period for which the workman was kept out of the employment and the last drawn wages earned by him, I am of the considered opinion that the interest of justice would be served by granting back wages to the extent of 40 %.

LW 71.06.2011
SAYEDABAD TEA COMPANY LTD. & ANR v. UNION OF INDIA & ORS [CAL] Rvw No. 93 of 2007 with Can No. 9721 of 2010 Kalidas Mukherjee & Raghunath Bhattacharyya, JJ. [Decided on 17/ 05/2011]
Employees Provident Funds and Miscellaneous Provisions Act, 1952 Section 7A Assessment as to contribution was determined Company filed appeal Directions to make payment in instalments given Company did not make the payments- Company preferred review of this order Whether allowable Held, No. Brief facts: In 7A proceeding of the Employees Provident

Funds and Miscellaneous Provisions Act, 1952 the competent authority made an assessment which was challenged in the Writ Court bearing W.P. No. 10675(W) of 2002. The writ petition was dismissed. Being aggrieved the petitioners herein filed the appeal bearing No. MAT 3920 of 2006 and also filed an application for stay bearing CAN 8177 of 2006. This is an application for review of the Order dated 23rd November, 2006 whereby the prayer for stay of operation of the impugned judgment and order was refused and a direction was given for payment of instalments. By a separate application bearing CAN 9721 of 2010 prayer has been made for stay of the impugned demand and/or Certificate for recovery of Rs. 11,51,629/- and from restraining the respondents from taking any further step for execution of the purported Certificate and/or demand till the disposal of the review application. Decision: Applications stand dismissed. Reason: On behalf of the petitioners it is submitted that there are some casual workers for which no contribution was payable and it is contended that a Special Officer should be appointed who will enquire about the existence of the casual workers and thereafter necessary order may be passed. On behalf of the Opposite Parties it is submitted that the Order for payment of instalment was made in the year 2006 and till today no payment has been made. It is further contended that there is no necessity of appointing any Special Officer. There was Arrear Dues of Rs. 11,51,629/- assessed under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. The contention as to the existence of casual workers was not accepted by the Writ Court. It was observed by the Honble Single Judge that the review application under Section 7B was rejected and it was apparent on the face of the decision dated 20th April, 2001 that the petitioners admitted their liability with respect to the casual employees for whom the proceedings had been initiated under para 26B of the Employees Provident Funds Scheme, 1952. The Honble Single Judge granted liberty to the petitioners to approach the authorities for accommodating them by granting instalment in accordance with the existing provision of law. After the passing of the order dated November 23, 2006 regarding instalments to be paid, no payment has been made as it is submitted on behalf of the Ops. So at this stage the necessity of ascertaining the existence of the casual workers by appointing a Special Officer is not called for. There is, therefore, no reasonable ground to review the earlier order dated 23.11.2006.

LW 072.06.2011
SUSHIL KUMAR PATHAK v. THE SECRETARY, DEVELOPMENT OF LABOUR & ORS.[CAL] W.P. No.1089 (W) of 2011 Debasish Kar Gupta, J.[Decided on 04/05/2011]
Industrial Disputes Act, 1947 Section 10(1B)(d) Conciliation proceedings No settlement could be reached Workman filed reference before the labour court Labour court dismissed the application as time barred Whether the court was correct Held, No. Brief facts: The writ petitioner raised a dispute before the Assistant Labour Commissioner, West Bengal in the matter of his dismissal by the respondent No.3 on October 4, 2005. A second representation was filed by him before the Assistant Commissioner, West Bengal on January 20, 2006. Since no settlement could be reached in the conciliation proceeding within 60 days, the petitioner filed an application dated July 7, 2004 in prescribed form for issuing a certificate in his favour. The Assistant Labour Commissioner, West Bengal issued a certificate dated July 13, 2006 in his favour. The petitioner filed Case No.30 of 2006 under Section 10(1B) (d) before the learned Judge, Second Labour Court, Kolkata. By virtue of the impugned order, the learned Judge dismissed the above application with the observation that the statute permitted the conciliation officer to issue a certificate in prescribed form S under the Industrial Disputes Act, 1947 on or before 60 days from the date of raising the dispute before him. Decision: Matter is remanded back. Reason: Having heard the learned Counsel appearing for the respective parties as also considering the facts and circumstances of this case, I find that a point of law relating to the period after expiry of which a certificate about the pendency of conciliation proceeding could be issued is involved in this writ application. In the instant case, the dispute was raised by the petitioner on October 4, 2005. It was followed by a second representation dated January 20, 2006. Admittedly, the petitioner filed an application for issuing the above certificate in his favour on July 7, 2006, i.e., well after expiry of 60 days. The certificate was issued by the conciliation officer on July 13, 2006. Therefore, there was no illegality in issuing the certificate under reference in favour of the petitioner but the learned Judge, Second Labour Court, Kolkata rejected the application of the petitioner on the ground mentioned hereinabove. The above ground is not sustainable in law in view of the discussions and observations made hereinabove. The impugned Award dated July 26, 2010 is, therefore, quashed and set aside.